Allowed

Eswar Gangaram Patil v. Janardhanan Pillai

Kerala HC24 May 2013WP(C)/15867/2007

Case brief

AI extract

What is this about?

The Kerala High Court allowed a writ petition challenging the dismissal of an application to set aside an ex-parte award in a motor accident claim. Finding the petitioner was not deliberately absent despite impleadment after six years, the court set aside the ex-parte award and remitted the matter to the Motor Accident Claims Tribunal for expeditious disposal.

What did the court decide?

The application for setting aside the ex-parte award dated 7.11.2006 is allowed, and the award is set aside. The case is remitted to the Tribunal for disposal within three months.

Eswar Gangaram Patil Vs Janardhanan Pillai — Motor Accident Claims | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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FRIDAY, THE 24TH DAY OF MAY 2013/3RD JYAISHTA 1935

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WP(C).No. 15867 of 2007 (L)

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AGAINST THE ORDER/JUDGMENT IN OPMV 1532/2000 of ADDL.MACT, ALAPPUZHA

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PETITIONER(S):

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ESWAR GANGARAM PATIL, S/O.GANGARAM PATIL, M/S.POOJA JEWELLERS, M.G.ROAD KOCHI.

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BY ADV. SRI.DINESH R.SHENOY

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RESPONDENT(S):

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1. JANADRDHANAN PILLAI, S/O KRISHNA PILLAI, VISHNU BHAVAN WARD NO.12, PATTANAKKAD P.O., CHERTHALA.

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2. JOSEPH, S/O.VARKEY, MAVUNKAL, PATTANAKKAD P.O., CHERTHALA.

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3. THE UNITED INDIA INSURANCE CO.LTD., ALAPPUZHA BRANCH.

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4. MUHAMMED RIYAS, S/O MUHAMMED, 7/926, D.S.ROAD, CC.DVN.NO.7 SOUTH OF CHEMBITTAPALLY, COCHIN-2.

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R1 BY ADV. SRI.T.B.SARASAN R2 BY ADV. SRI.J.OM PRAKASH R3 BY ADV. SRI.RAJAN P.KALIYATH

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 15867 of 2007 (L)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1 : TRUE PHOTOCOPY OF IA NO. 1237/2006 FILED BY THE PETITIONER HEREIN BEFORE THE ADDITIONAL MACT, ALAPPUZHA

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EXT.P2 : TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE FIRST RESPONDENT IN THE ORIGINAL PETITION

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EXT.P3 : TRUE PHOTOCOPY OF THE ORDER DT 22.2.2007 IN I.A NO.2248/2006 IN MACA NO.2027/2006,HIGH COURT OF KERALA

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EXT.P4 : TRUE PHOTOCOPY OF KYCHIT SUBMITTED BY THE 3RD RESPONDENT BEFORE THE PATTANAKKAD POLICE

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EXT.P5 : TRUE PHOTOCOPY OF THE CONSENT LETTER ISSUED BY THE PETITIONER, COUNTERSIGNED BY THE 4TH RESPONDENT BEFORE THE PATTANAKKAD POLICE STATION

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EXT.P6 : TRUE PHOTOCOPY OF ORDER DT 22.2.2007 IN I.A. NO.1237/2006 IN OP(MV)532/2000

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RESPONDENTS' ANNEXURES:

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EXT.R1(A) : TRUE COPY OF DEPOSITION OF WRIT PETITIONER IN OPMV 1248/00

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EXT.R1(B) : WRITTEN STATEMENT OF THE WRIT PETITIONER IN OPMV 1248/00

//TRUE COPY//

P.A. TO JUDGE

jma

K. VINOD CHANDRAN, J

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- - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 15867 of 2007 L

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- - - - - - - - - - - - - - - - - - - - - - - - - - - -

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Dated this the 24^th day of May, 2013

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J U D G M E N T

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The above writ petition is with respect to the dismissal of an application filed by the petitioner to set aside the ex-parte award passed against him in OP(MV) No.1532/2000. Suffice it to say that an accident occurred and two claims were filed by the injured against the insurer and the owner of the car which allegedly caused the accident. Though the original petition was filed in the year 2000, long after six years an application was made to implead the petitioner herein as he was shown as the registered owner of the vehicle. The impleading application was filed on 20.6.2006 and notice was ordered on 15.7.2006 and an exparte award was passed on 7.11.2006. Immediately thereafter on 1.12.2006 the petitioner appeared and sought for setting aside the ex-parte award. The learned Tribunal by Ext.P6 detailed order looked into the evidence that would be adduced by the petitioner, if at all the award was set aside, and entered a finding that there is no merit in the contention of the

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WPC.15867/2007

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petitioner and hence there is absolutely no necessity to set aside the ex-parte award.

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The counsel for the petitioner in the OP(MV), i.e, the first respondent submits that the absence of the petitioner or his non appearance was wilful and deliberate and there was no cause shown to set aside the ex-parte award. It is also submitted that another person who was injured in the very same accident has filed a separate claim in which the petitioner herein had adduced evidence and suffered an award which was also unsuccessfully challenged before this Court. It is countered by the learned counsel for the petitioner that the appeal before this Court was dismissed in that case only on account of there being no sufficient evidence to substantiate his claim.

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In any event, the evidence adduced in another case cannot be hold the basis of the decision in the separate claim filed by the first respondent herein. The matter would have to be considered after giving the petitioner an opportunity to adduce evidence in accordance with law. This Court is not at this time called upon to make any observation on the merits of

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WPC.15867/2007

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the case and what has to be decided is as to whether the dismissal of the application for setting aside the ex-parte award was correct and legal. Going by the dates as shown above, it cannot be said that the petitioner was deliberately absent nor that the petitioner has resorted to dilatory practice. It is evident that the impleadment of the petitioner was made after six years of the accident. Though notice was issued on 15.7.2006, immediately after the first posting, after issuance of notice, the ex-parte award was made. Immediately thereafter, within a period of less than a month, the petitioner had approached the Tribunal with an application to set aside the ex-parte award. It is also to be noticed that without considering the reason for non-appearance; the Tribunal has attempted to decide the issue on merits even without any evidence adduced in that respect. Normally this court would have directed the application for setting aside the ex-parte award to be considered afresh, however, considering the fact that the matter has been pending for the last about 13 years and this Court had in this writ petition, granted an interim stay of the proceedings pursuant to the ex-parte award, it is

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WPC.15867/2007

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deemed fit that the application for setting aside the ex-parte award be allowed and the matter remitted back to the Tribunal for expeditious disposal. Hence, I.A No.1237/2006, the application for setting aside the ex-parte award is allowed and the award dated 7.11.2006 in OP(MV) No.1532/2000 is set aside. The Tribunal is directed to restore the OP(MV) to the files of the Tribunal and dispose of the matter expeditiously within a period of three months from the date of appearance of the parties. The parties, since are represented by their counsel, are directed to appear before the Tribunal on 10.6.2013.

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Writ petition is allowed. No costs.

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Sd/- (K. VINOD CHANDRAN, JUDGE)

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jma

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//true copy

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P.A to Judge

Eswar Gangaram Patil v. Janardhanan Pillai

Case brief

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Eswar Gangaram Patil v. Janardhanan Pillai

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